COURT OF APPEALS

DECISION

DATED AND FILED

 

March 9, 2011

 

A. John Voelker

Acting Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

 

 

 

 

Appeal No.�

2010AP834

Cir. Ct. Nos.� 2008TR7380

2008TR7381

STATE OF WISCONSIN���

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

Kenosha County,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Jodi A. Braune,

 

��������� Defendant-Appellant.

 

 

 

 

 

����������� APPEAL from a judgment of the circuit court for Kenosha County:� barbara a. kluka, Judge.� Affirmed.

�1������� REILLY, J.[1]� �Jodi A. Braune appeals from a judgment of conviction for operating a motor vehicle while intoxicated.� Braune contends that as the deputy who stopped her vehicle did not have probable cause or reasonable suspicion to conduct a traffic stop, the evidence used to convict her should have been suppressed.� We conclude that the deputy�s investigative traffic stop was supported by probable cause that Braune committed a traffic violation.� Braune�s conviction is affirmed.

FACTS

�2������� A little after 2:00 a.m. on September 10, 2008, Kenosha County Sheriff�s Deputy David Gomez was on routine patrol when he began to follow Braune�s vehicle.� After the deputy observed Braune�s vehicle cross the fog line on the right side of the road and then return to its lane, the deputy pulled over Braune.� Braune was later cited for operating a motor vehicle while intoxicated (contrary to an ordinance adopting Wis. Stat. � 346.63(1)(a)) and for failing to drive in her designated lane (contrary to an ordinance adopting Wis. Stat. � 346.13(3)).� A bench trial was held and Braune was found guilty of both citations.[2]

�3������� On appeal Braune argues that as crossing a fog line is not a violation of Wis. Stat. � 346.13(3), the deputy did not have probable cause or reasonable suspicion to conduct a traffic stop.� We disagree and affirm her conviction.

STANDARD OF REVIEW

�4������� A police officer may conduct a traffic stop when he has probable cause to believe that a traffic violation occurred.� State v. Popke, 2009 WI 37, �13, 317 Wis. 2d 118, 765 N.W.2d 569.� Even when an officer does not have probable cause that a traffic violation occurred, he may still conduct a traffic stop when he has reasonable suspicion under the totality of the circumstances that a crime or traffic violation was committed or will be committed.� Id., �23.� Whether there is probable cause or reasonable suspicion to conduct a traffic stop is a question of constitutional fact.� Id., �10.� �A finding of constitutional fact consists of the circuit court�s findings of historical fact, which we review under the �clearly erroneous standard,� and the application of these historical facts to constitutional principles, which we review de novo.�� Id.�

DISCUSSION

�5������� Wisconsin Stat. � 346.13(3) provides that �when lanes have been marked or posted for traffic moving in a particular direction or at designated speeds, the operator of a vehicle shall drive in the lane designated.�� The deputy testified and the circuit court found that Braune drove completely across the fog line with the right front and rear tires, before returning to her lane of traffic.� Braune does not dispute the circuit court�s factual finding, but argues that crossing a fog line does not by itself violate � 346.13(3).� Braune contends that there is no case law establishing that a single crossing of the fog line violates � 346.13(3).� She also argues that there was no evidence that her conduct posed any danger to other vehicles.� The State contends that as Braune violated � 346.13(3) when she crossed the fog line, the deputy had probable cause to conduct a traffic stop.

�6������� In Popke, the supreme court held that an officer had probable cause to stop a vehicle after observing the vehicle swerve to the left of the center line, contrary to Wis. Stat. � 346.05.� Popke, 317 Wis. 2d 118, �17.� The court rejected the defendant�s argument that he was not �driving� on the wrong side of the road because he only �momentarily� crossed the center line.� Id., �18.� The court relied on the definition of �driving� found in Wis. Stat. � 346.63(3)(a)��the exercise of physical control over the speed and direction of a motor vehicle while it is in motion��to conclude that the defendant�s actions violated the statute, even if only briefly and in a manner that may occur commonly.� Id., ��18-19.� Probable cause was thus established for the traffic stop.� Id., �17.

�7������� We hold that under the plain language of Wis. Stat. � 346.13(3), Braune�s deviation over the fog line was sufficient to establish probable cause that Braune committed a traffic violation.� When the deputy observed Braune�s conduct, he had probable cause that Braune did not drive �in the lane designated.�� See � 346.13(3).� Indeed, Braune drove completely across the outside of the lane with the right side of her vehicle.� The deputy�s personal observation provided him with probable cause�that is, �the �quantum of evidence which would lead a reasonable police officer to believe� that a traffic violation has occurred.�� Popke, 317 Wis. 2d 118, �14 (citation omitted).� Thus, the deputy�s stop of Braune was constitutionally permissible.[3]

 

CONCLUSION

�8������� As we hold that the deputy had probable cause to conduct the traffic stop of Braune, we affirm Braune�s conviction.

����������� By the Court.�Judgment affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule
809. 23(1)(b)4.

 

 

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(b) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2]  Braune does not appeal her conviction for failing to drive in her designated lane.� See City of Kenosha v. Braune, No. 2010AP835, unpublished slip op. (Wis. Ct. App. Apr. 8, 2010).

[3]  As we conclude that the deputy had probable cause to believe that Braune violated Wis. Stat. � 346.13(3), we need not discuss whether the deputy had reasonable suspicion under the totality of the circumstances that Braune committed a traffic violation.�